'Ag-gag' law that thwarts investigations on factory farms is challenged in Utah

Last year was a good one for whistleblowers on factory farms: not one of the 11 “ag-gag” bills introduced across the U.S. in 2013 became law, and so far in 2014 two such bills, in the New Hampshire and Indiana legislatures, have been defeated by animal rights activists. What agribusiness calls farm protection laws – and what animal rights and First Amendment proponents call ag-gag laws – are regulations that make it a crime to photograph, videotape or otherwise investigate industrial farms while undercover. The front lines of the battle are now in Utah, whose ag-gag law is the first ever to be challenged in court. The outcome of this landmark litigation may help determine the treatment of animals raised for food, and ultimately the safety of our food supply.

Ag-gag laws have made headlines in the past few years, but they first appeared in state legislatures in 1990, when Kansas passed the first-ever gag law by criminalizing trespass specifically on agribusiness property, soon followed by Montana and North Dakota. (States already have laws against trespassing on private property, but critics say ag-gag laws are purposely redundant in order to intimidate activists or journalists.)Since another surge began in 2010, 19 more states have introduced similar bills, with just four becoming law – including in Utah.

Activist Amy Meyer filmed the illegal and inhumane handling of animals on a factory farm in Draper City, Utah. Pictured here is a sick cow being pushed by a farming loader. Image courtesy Amy Meyer.

What makes these bills so important is that undercover investigation is often the only way to get meaningful information about how animals are treated in factory farms and how safe the meat might be that comes out of them. Surreptitious information-gathering has a history of exposing food safety and animal abuse, as far back as Upton Sinclair’s The Jungle, a muckraking exposé of the meatpacking industry that sparked the first federal inspection standards for meat and the creation of the Food and Drug Administration in 1906. Government regulation has historically fallen short of ensuring humane conditions for animals and food safety. Federal inspectors themselves are often discouraged from reporting unsafe conditions, exemplified by the case of former U.S. Department of Agriculture inspector Dean Wyatt, whose reporting of industry violations nearly cost him his job – even though reporting violations was his job. Wyatt’s diligence led to a new procedure designed to allow inspectors “to voice their concerns when the standard reporting mechanisms do not adequately address outstanding issues.”

But the agribusiness lobby group Animal Agriculture Alliance says that so-called farm protection legislation is necessary to protect large-scale farmers from what they say are animal rights extremists. The AAA claims that activists manipulate photos and videos taken undercover to “to influence public opinion and fundraise” for the fight to end all industrialized food production. Yet the AAA has yet to substantiate these photo manipulation claims with evidence.

With ag-gag laws losing traction, earlier this month the AAA announced a new gag strategy: quick-reporting laws. This means forcing anyone who witnesses animal abuse, including at factory farms, to report it to authorities within as little as 24 hours or face a jail sentence. The industry claims their intent is to root out violations as soon as they happen, but for activists and journalists, quick-reporting laws would simply make long-term investigations – which are the only ones that can expose systemic violations – essentially impossible.

“Say you have an undercover police officer that penetrates an undercover drug distribution network,” said Chris Green, legislative director of the Animal Legal Defense Fund (ALDF), lead plaintiff in the Utah case. “You’d have to have this investigator basically out themselves as soon as they see a $5 drug purchase, and compromise the entire investigation.”

In Colorado, Rep. Jerry Sonnenberg introduced a quick-reporting bill in the state senate this month. The proposal is still in draft form, and it’s unclear how far it will get in the Democrat-controlled state legislature.

“Just sweep it under the rug – that’s what would continue to happen if you had these mandatory reporting requirements,” Green said of quick-reporting proposals like Sonnenberg’s, which he called the last shaky legs on which ag-gag efforts are standing.

The Utah law may not stick around either, if the legal challenge against it wins the day. The outcome of the trial could have a major impact on the future of food industry whistleblowing. The largest meat recall in U.S. history – 143 million pounds of potentially tainted beef, including about 37 million pounds to the National School Lunch Program – started with an undercover investigation by the national Humane Society that would have been illegal under both the Utah law and Sonnenberg’s proposal. That 2008 footage documented systemic violations of health and safety regulations at the Hallmark meat packing facility in Chino, Cali., including the slaughter of “downer cows” no longer able to stand on their own and likely sick enough to contaminate the processed beef. Hallmark and its parent company Westland paid a multimillion dollar settlement in the case late last year.

Advocacy groups ALDF and People for the Ethical Treatment of Animals jointly filed the lawsuit against Utah’s Agricultural Operation Interference ag-gag law last summer, along with two journalists, two private investigators, one academic and one concerned citizen – Amy Meyer, the only person to be charged with violating the law, and cleared less than a day later because she had actually been standing on public land when filming a private factory farm facility. The hasty misapplication of the law has only fueled anti-ag-gag criticism in support of the lawsuit.

Lead ALDF attorney Matthew Liebman said the Utah case has a strong chance of winning under a similar premise as the Westland/Hallmark case: by thwarting the whistleblower, the law conflicts with the False Claims Act, a federal provision that protects the U.S. government from fraudulent claims – such as the sale of beef that has not been processed safely and humanely, according to law.

And Green said the pro-whistleblower trend seems to continue to gain ground, back toward allowing reporters and activists to undertake investigations of industrialized agriculture without the threat of excessive criminal punishment. This time last year, for instance, there were nine ag-gag bills before state congresses across the country, whereas following a season of outcry against such measures, today there are none. Another factor in ALDF’s favor: Judge Robert Shelby, who made headlines last year by striking down Utah’s ban on gay marriage, is presiding over the case, and ag-gag critics hope his socially liberal leanings will turn this case their way.

Undercover investigations have led to monumental reforms in America’s food safety regulations, and ultimately, public interest in a safe food supply is more important than the multibillion-dollar industry’s interest in keeping their operations out of public view. In the absence of a perfect food safety regulatory system, protecting the food supply requires protecting the whistleblowers.

Christi Turner is an editorial intern at High Country News. She tweets @christi_mada.